Stevens v. McNamara , 36 Me. 176 ( 1853 )

Howard, J. —

The demandant acquired title to a portion of the premises demanded, in 1823, and conveyed it to his son, Jonathan Stevens, in 1825. The remaining portion was conveyed to the demandant, in 1827; and subsequently, in 1842, the whole was sold for taxes by a collector, and conveyed by him to the purchaser. In 1845, a daughter of the demandant, who is now one of the tenants, and wife of the other, paid the money to the purchaser, in amount sufficient, as it would seem, to redeem the estate from the sale for taxes, and took a deed of the premises to herself. This was done by the request of the demandant, in his presence, and under his direction.

As to that portion of the estate, whieh was owned by the demandant, when the sale for taxes took place, he is estopped by his own acts, in pais, to set up a title in himself as existing when the conveyance was made, by which the tenants now claim. He is concluded upon the principle that one shall not knowingly and designedly induce another to purchase an estate for a valuable consideration of a third party, and then set up a prior and better' title in himself to defeat the -title of the purchaser. This principle of equity, it is held, has been adopted at.law, and the cases cited from English and American decisions, in Copeland v. Copeland, 28 Maine, 539, 540, appear to sustain the doctrine, Rangely v. Spring, 28 Maine, 135, opinion of Whitman, C. J.

But the estoppel cannot apply to the title which the demandant claims to have acquired since the conveyance to his daughter. To that portion of the estate owned by Jonathan Stevens,, when sold for taxes, that sale conveyed no title as against the owner, the proceedings necessary to support the sale not having been shown to be legal. To that portion the demandant now asserts title, as father and sole heir to Jonathan Stevens. The death of the latter, since 1843, has not been shown, but it is contended that it must be presumed from facts appearing in evidence. Ordinarily, in the absence of evidence to the contrary, the continuance of the life of an individual to the common age of man, will be assumed by presumption of law. The burden of proof lies upon the party alleging the death of the person; but, after an absence from his home or place of residence, seven years, without intelligence respecting him, the presumption of life will cease, and it will be incumbent on the other party asserting it, to prove that the person was living within that time. 2 Stark. Ev. 365; 1 Greenl. Ev. § 41, and cases cited.

But the demandant cannot invoke this principle to his aid ; for, upon a careful examination of the testimony, it does not appear that Jonathan Stevens had been absent from Hallowell, in this State, seven years, before the commencement of this action, and whether his residence be regarded as there, or in Philadelphia, is immaterial. Hiram B. Stevens testified that Jonathan, after an absence of fourteen years, went to Hallowed in November, 1843, about the ninth day of the month, and staid there “ near a week, but can’t say just how long.” Winter testified that Jonathan staid “when last here five or six days in 1843.” Benjamin Stevens, a brother of Jonathan, testified that “ he was in Hallowed in November, 1843, and staid about a month.” The writ of the demandant is dated November 18, 1850. It is not proved, therefore, and we cannot assume, that Jonathan Stevens had been absent from Hallowed, the residence of his father, brothers and sister, and his home formerly, at least seven years before this suit was commenced; and we cannot lawfully presume that he was not then living. Consequently, the demandant’s claim to that portion of the premises which was conveyed by him to Jonathan Stevens, is not maintained. As he must stand upon his own title, and that proving insufficient to support his action, he must become nonsuit, according to the agreement.

Shepley, C. J., and Wells, Rice and Hathaway, J. J., concurred.